Migration Litigation Reform Bill 2005

Bills Digest no. 132 2004–05

Migration Litigation Reform Bill 2005

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

Given the short time between introduction of
this Bill and scheduled debate in the House of Representatives,
this digest is a draft covering key points only. It will be revised
to include a more comprehensive discussion in time for further
consideration of the Bill by the Parliament.

Readers are directed
toBills
Digest No. 118 of 2003-04(1) on the Migration
Amendment (Judicial Review) Bill 2004 (the '2004 Bill'). The 2004
Bill contained similar (although not identical) reforms to the 2005
Bill. The digest on the 2004 Bill includes extensive background and
a detailed reading list. The 2004 Bill was also the subject of an
inquiry(2) by the Senate Legal and Constitutional
Legislation Committee. The 2004 Bill lapsed when Parliament was
prorogued for the October 2004 federal election.

The Federal Court will have limited jurisdiction in migration
matters, restricted to complex cases referred by the FMC and review
of decisions to cancel the visas of, or deport, people on
'character' grounds

Nearly all migration cases remitted from the High Court will be
channelled directly to the FMC

(Item 17)

Ensure identical grounds of review in migration
cases

The grounds of review in migration matters in the FMC will be
the same as those in the High Court under s75(v) of the
Constitution. Section 75 of the Constitution states that the High
Court has 'original jurisdiction' (i.e. the authority to hear
cases) in all matters:

(v) in which a writ of Mandamus
[directing that an officer do a certain action] or
prohibition [preventing an officer from doing a certain
action] or an injunction [halting a current or future
action for a period of time] is sought against an officer of
the Commonwealth.

(Item 17)

Impose uniform time limits in migration
cases

Applications to the FMC, Federal Court and the High Court must
be made within 28 days of actual (rather than deemed) notification
of a decision. The 28 day time limit can be extended by a further
56 days if a request for further time is made within 84 days of
actual notification of the decision

(Item 18 and Items
30-33)

Facilitate quicker handling of migration
cases

Require applicants to disclose previous applications for
judicial review of the same migration decision

Expressly provide for the High Court to remit migration and
other cases 'on the papers' (i.e. without a hearing)

(Items 10 and
37)

Deter unmeritorious
applications

Allow the High Court, Federal Court and FMC to dispose of a
matter summarily on their own initiative if satisfied that there
are no reasonable prospects of success

Prohibit lawyers, migration agents and others from encouraging
unmeritorious migration litigation, with the risk of a personal
costs order for contravening this prohibition.

General Comments

The Government is very concerned about the large
increases in the number of migration cases in the federal courts in
recent years and the very low success rate of this
litigation. Migration litigation constitutes a substantial
proportion of the workload of the High Court, Federal Court and
Federal Magistrates Court (FMC). In recent years, the
Government has won over 90 per cent of all migration
cases decided at hearing. Unsuccessful cases are not
necessarily unmeritorious. However, the very high failure
rate reflects concerns raised, including by the courts, about high
levels of unmeritorious migration litigation.

The large volume of judicial review proceedings,
unmeritorious litigation and delays are very costly and are placing
strains on the courts and the migration system more
generally. Extended waiting times in courts have been taken
advantage of by some applicants using the court process simply to
delay their removal from Australia and prolong their stay in the
community. These delays impact on applicants with genuine
claims who are waiting to have their cases
considered.(3)

In October 2003 the Government commissioned
the Migration Litigation Review conducted by Hilary Penfold QC to
inquire into more efficient management of migration cases.
According to the Second Reading Speech, the measures in the 2005
Bill have been drawn from recommendations by the Review. Bills
Digest no 118 noted in relation to the 2004 Bill that:

The Government has asked Parliament to approve the
current Bill without releasing the Migration Litigation
Review. There has been no public indication of what its
conclusions and recommendations were. This prevents any assessment
either of the adequacy of the Review in addressing the issue of
migration caseload or the adequacy of the Bill as a response to the
Review.(4)

The findings of the Review have yet to be
released. In other words, the Government has still not revealed
publicly the detailed analysis from the Review on which the
proposals in the 2005 Bill are based.

The table below shows figures for judicial
review applications in migration matters in various courts from
1997 to 2005. As Bills Digest no.118 noted, there was a large
increase in applications in 2002/03 after the government prohibited
'representative' actions in migration matters, causing the single
Muin case to be split into an additional 1350 matters,
which were filed in the High Court in that financial
year.(5) After the distorting effect of the Muin case on
migration matters passed, numbers of migration applications have
declined dramatically. The extent to which the reforms proposed in
the Bill are now necessary is unclear.

The FMC, which commenced hearings in 2000,
received jurisdiction in migration matters in 2001. As the Second
Reading Speech notes, 8 additional magistrates have been appointed
to the FMC. The graph below indicates that the FMC is playing the
role intended for it, taking on a substantial part of the burden in
migration matters from the Federal Court and the High Court.

As explained in Bills Digest no 118, in Plaintiff S157
the High Court said that a decision under the Migration Act
affected by 'jurisdictional error' (i.e. a significant mistake')
was not a valid decision under the Act. So appeals from such a
decision could not be caught by the time limits in the Act. The
High Court called migration decisions with such mistakes
'purported' decisions.

The 2005 Bill amends the Migration Act so that it specifically
includes 'purported decisions'. Any time limits on appealing in the
Act will now apply to 'purported' decisions

Logically, however, it is difficult to see how this can be
effective. The High Court has said that 'purported' decisions are
outside the scope of the Migration Act. So amending the Migration
Act itself cannot bring them within its scope.

A 'purported' decision is defined by the Bill to include
anything listed in s474(3) of the Migration Act. So, for example,
purported 'conduct preparatory to making a decision', a purported
'failure or refusal to make a decision' or a purported 'refusal to
do any other act or thing would all be subject to the time limits
and other restrictions on judicial review in the Migration Act

the wide definition of 'purported' decision may make it
difficult for people to recognise that some decision or action, or
inaction, has occurred which has started time limits running for
lodging an appeal

the consequence may be that people may seek to lodge
'precautionary' appeals in case they have been the subject of a
'purported' decision without this being obvious to them. This will
be all the more difficult, however, because of the proposal in the
Bill to 'penalise' unmeritorious applications. In practice,
therefore, applicants may be caught between, on the one hand, a
vague definition of 'migration decision' linked to strict time
limits for appealing and, on the other hand, a prohibition on
appealing if there are 'no reasonable prospects' for success,
linked to personal costs orders.

Pursuant to section 44 of the Judiciary
Act 1903, the High Court could remit any matter, on its own
motion or on application of the parties, in full or in part, and
whether or not the matter originated in the High Court. Importantly
however, the Migration Legislation Amendment (Judicial Review)
Act 2001, which commenced in September 2001, removed the power
of the High Court to remit matters that relate to immigration
decisions where those decisions a) have a merits review process
attached,(6) and b) are subject to the Minister s
discretion to substitute a more favourable decision.(7)
It follows that these constitutionally entrenched matters must now
be reviewed by the High Court itself.

The Bill does not change this position, but simply directs the
High Court to remit other migration matters directly to the
FMC.

This proposal may raise constitutional issues, especially the
possible intrusion of the legislature into the 'judicial power' of
the Commonwealth, in contravention of Chapter III of the
Constitution

The Bill gives discretion to courts to decide whether an
unmeritorious application has been brought and whether a personal
costs order should be made against the applicant, his or her lawyer
or migration agent. However it directs courts to consider whether a
personal costs order should be made. This could potentially amount
to an unconstitutional intrusion into federal judicial power.

Parliament may also wish to consider a number of policy issues
raised by this proposal

Whether this would discourage lawyers and/or migration agents
offering advice to potential applicants, leading to more
unrepresented (and potentially less meritorious) applications. A
practical issue may be whether applicants with no ability to pay in
any case if a decision goes against them would be discouraged by
the threat of a personal costs order

Whether this may provoke a significant number of cases about
whether an unmeritorious application has been made.

The provisions in the Bill allowing summary judgments at the
initiative of the High Court, Federal Court or FMC apply not just
to migration matters but to all matters. It is suggested that
Parliament should seek specific advice on the full implications of
this proposal.

Peter Prince
15 March 2005
Bills Digest Service
Information and Research Services

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